Thursday, July 11, 2019

Deposition Distress

Deposition misconduct usually results from the uncivil or obstructionist conduct of lawyers. But on occasion it is the deponent who mocks the deposition process. In In re: Shorenstein Hays-Nederlander Theatres (SHN) (June 20, 2019), the Delaware Supreme Court reviewed an extreme example of deponent misbehavior. Charitably, the court described the deponent’s responses as “flagrantly evasive,” “flippant,” and “abusive.” More accurately, the deponent’s deliberate, nonsensical responses were reminiscent of double-talking comedian Professor Irwin Corey who appeared on T.V. from the 1960s through the 1980s.  

For example, the lawyer conducting the deposition tried his best to find out how many times the deponent met with counsel to prepare for the deposition. 

Q.  You told me you met with your counsel to prepare for the deposition.  

A.  Sure.   

Q.  How many times? 

A.  Well, see, I think of time as a continuum.  So I think I met with them from the beginning to the end.  And the beginning was the start, and then there was the rehearsal, and then there was the preview, and now it’s what I think of as the performance.  So, in my mind, I’m answering what you’re asking.  If you could be more specific.  Do you want hours?

Q.  Yes.

A.  Oh, I don’t wear a watch.  So I know the sun coming up in the morning and the moon coming up at night.

Q.  Can you tell me the number of times that you met with your counsel to prepare for the deposition?  I’m looking for a number.

A.  Well, I gave you that.

Q.  What was the number?

A.  The number was the beginning to the end.

Other areas of inquiry also failed to produce relevant information.

Q.  When was SHN founded?

A.  At the beginning.

Q.  In what year?

A.  The year it was founded.


Q.  So my question is, was your father a founder of SHN?

A.  My – I am the daughter of my father.

Q.  By definition, you are the daughter of your father.  My question was, is your father a founder of SHN?

A.  My father and my mother raised me in an environment to have a great love and appreciation of the arts and introduced me to many, many people.  

The trial court awarded attorneys’ fees and costs for the deponent’s willful bad faith litigation tactics. The award was not challenged on appeal. Nevertheless, the Delaware Supreme Court raised the misconduct issue sua sponte “to remind counsel that they have a responsibility to intercede and not sit idly by as their client engages in abusive deposition misconduct.” The court also tried to look at the bright side by suggesting that the deposition transcript be employed in “training new lawyers on deposition skills.”